Gila Louzon v. Government of Israel

The decision addressed three petitions with similar facts. In all three cases, the petitioners were diagnosed with cancer and prescribed a medication not included in the health services basket available under the national health care services (which was prohibitively expensive to purchase individually). By the time two of the petitions came to the Court, however, the relevant drugs had since been included in the health services basket. The Court therefore dismissed the two petitions but agreed to hear the third petition the Scheiber petition, as the drug (Erbitux) remained unavailable under the program at the time of the hearing.

The petitioners claimed that the exclusion of the drug from the health services basket violated their constitutional rights and was discriminatory. They claimed that while the national constitution did not expressly provide for a right to health, a right to health was implied in the constitutional guarantee to the right to life and the right to bodily integrity. The petitioners also claimed that the health services basket was discriminatory in that it discriminated against persons with certain diseases in order to provide treatments to persons with other diseases; they suggested that funding should rather be equally distributed for all life-saving or life-prolonging drugs. The petitioner requested: (1) that the drug be added to the list of approved drugs under the health services basket; and (2) that, if the drugs were not available under the health services basket, the Government should take certain measures to reduce the cost of purchase by individuals.

The State argued that the process for making recommendations regarding which drugs to include in the health services basket was a complex one involving a variety of considerations and budgetary restrictions, adopted after a thorough and informed process, which the Court had no grounds to interfere with.

The Court held that: (1) the actions of the Government did not violate the petitioner’s constitutional rights; (2) the process used by the relevant committee to develop the list of approved drugs for the health services basket was not so unreasonable as to warrant intervention by the Court; and (3) the Government should consider, but was not required to implement, centralized purchasing to reduce the cost of life-saving medications when they must be purchased by individuals.

With regards to the petitioner’s constitutional rights, the Court held that there was not a violation. The Court found that prior case law implied a basic right to health as a component of the right to bodily integrity and the right to human dignity. The precedent required that basic health services be available to each individual.  The Court explained, however, the challenge in defining  the contours of the right to health and noted that even in states where such right had been expressly granted, it was limited by budgetary restraints. Furthermore the Court noted that the petition at hand did not require determination of the constitutional status of the right to medical treatment, but rather merely concerned the manner in which authorities exercised their discretion in determining the contents of the health services basket and the substance of the statutory right to public health services.

In consideration of budgetary restraints and the impossibility for states to offer all available treatments to every person, the Court found it reasonable that the Government would choose not to include Erbitux in the list of approved medications in the health services basket. There was no clear evidence available to show that the drug was an effective treatment and therefore it would not fall into the category of basic health services. The Court did note that there was an express legal right to health through the Patient’s Rights Law and the National Health Insurance Law. After determining that the laws require the provision of ‘proper medical service’ the Court found that the right to healthcare services could be divided into two categories. Certain basic, core services were required to be provided by the state. Other periphery healthcare services, beyond the scope of basic services, were budget-dependent. The drug in question was classified by the Court as a non-basic treatment and therefore the Government could choose not to provide the drugs due to budgetary constraints.

With regards to the alleged discrimination in defining the list for the health services basket, the Court held that there was no justification for Court intervention. The Court noted that under the National Health Insurance Law, additional services could only be added to the health services basket if there was a suitable source of funding. Therefore, the Government was unable to provide all treatments and must prioritize those treatments that were likely to be of greatest benefit. The Court also detailed the professionalism and functioning of the committee responsible for recommending the list of treatments for the health services basket (the “health committee”) and determined that, considering the sensitive and complex questions it considered, the health committee should be given broad deference. The Court further detailed the criteria used by the health committee to make its recommendations (relating to the effectiveness of a treatment, its life-saving capabilities, the economic cost and the potential number of beneficiaries) and determined that such criteria could not be faulted as unreasonable or discriminatory.

With regards to the petitioner’s request that the Court require the Government to take certain measures to reduce the cost of new technology drugs to individuals when those drugs are not included in the health services plan, the Court (1) held that the question of whether to include a statutory exemption from certain taxes for new medications was a matter for the legislature and not the court; and (2) recommended that the Government consider the feasibility and potential impacts of centralized purchasing of the drugs by the Government.

“9. … [T]he right to health can be viewed as a collective term for a cluster of rights related to human health, some of which enjoy constitutional status in our legal system. For example, the right to health includes the right to preservation of the patient’s privacy and protection of his autonomy by disclosure of all medical information concerning him and obtaining his consent to any treatment administered to him. The right to health likewise includes the right not to be discriminated against with respect to access to medical treatment. It also includes additional aspects that affect people’s health, such as public awareness and access to information on health-related matters, access to acceptable food and drinking water in suitable sanitary and environmental conditions that are not harmful to human health… Considering the many aspects of the right to health, there would seem to be no basis for examining the constitutional status of the right as one composite whole; rather, the rationales for the various rights and interests protected in its framework should be considered, in accordance with their relative social importance and with the strength of their connection to the constitutional rights enumerated in Basic Law: Human Dignity and Liberty.”

“10. … [T]he accepted view of this Court has been that the Court should be wary of intervening in the formulation of overall economic policy and in the determination of national priorities; the general rule is that the executive and the legislative branches shoulder the public and national responsibility for the State economy.”

“11. … A comparative analysis reveals that while the right to health and medical treatment is recognized on the international level and in the constitutions of several states world-wide, the scope of this right, the degree to which it is protected, and the manner of its realization vary from state to state, and are characterized by a cautious approach that is influenced, inter alia, by the availability of public resources and by the economic capabilities of each state.”

“12. … [E]ven according to an exegetical approach that extends the constitutional scope of the right to human dignity beyond the level of the basic minimum in the area of welfare and social security, it would appear that only in extreme and exceptional circumstances would the state be constitutionally obligated to fund a specific medication…”

“16. … Within the outer casing of the basic right to public healthcare services are all other health services that are not included in the framework of this basic basket. Pursuant to the provisions of the National Health Insurance Law, the right to extend the health services basket beyond the basic basket is a right of the type that … [are] dubbed ‘budget-dependent rights’.”

“29…Considering all the above, it cannot be said that the Committee’s recommendation regarding the ranking of Erbitux is unreasonable to a degree that requires this Court’s intervention. Nor can it be said that the Committee’s recommendation regarding Erbitux constitutes unlawful discrimination against the petitioners vis-à-vis other patients whose required medications are included in the health services basket. Under circumstances in which the public resources are insufficient to satisfy all the needs and all the needy, resources must be allocated according to a scale of priorities, which naturally gives rise to distinctions between various individuals and various groups. These differences do not constitute unlawful discrimination, as long as they are based on relevant, reasonable considerations …. Any other approach would preclude any possibility of distributive decisions for purposes of allocation of public resources, even in circumstances in which the decisions were adopted on the basis of lawful considerations.”